Supreme Court prorogation ruling and what it means for Wales

Published 25/09/2019   |   Last Updated 27/05/2021   |   Reading Time minutes

The Supreme Court ruled yesterday that the Prime Minister’s decision to advise Her Majesty the Queen to prorogue Parliament for five weeks was unlawful. This blog post provides an overview of events before the case, the Court’s decision and its implications for Wales.

The decision to prorogue

On 28 August, the Prime Minister announced in a letter to MPs that he would prorogue (suspend) Parliament from the second week in September until the 14 October.

The Prime Minister said that the current parliamentary session had lasted for more than 340 days and was the second longest session in almost 400 years. He explained that proroguing Parliament would enable him to "bring forward a new bold and ambitious domestic legislative agenda for the renewal of our country after Brexit".

Following the Prime Minister’s formal request to her Majesty the Queen, Parliament was prorogued during the early hours of Tuesday 10 September.

This decision was controversial because it reduced the amount of time that Parliament was in session before the Brexit deadline of 31 October. It was immediately challenged in the courts and eventually reached the Supreme Court on 17-19 September.

Reaching the Supreme Court: the appeals

The Supreme Court considered two contradictory rulings from the lower courts. Named after the main parties in each case, they are referred to as the ‘Cherry case’ and the ‘Miller (No.2) case’:

1. Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland)

This case started in Scotland’s Court of Session and was led by Joanna Cherry QC MP with the support of 75 parliamentarians (including 13 Welsh MPs) and the Good Law Project. The challenge was originally rejected by the Court on 4 September but was later unanimously overturned by Scotland’s High Court of Justiciary. The Court ruled in favour of Cherry and others on the grounds that the prorogation “was unlawful because it had the purpose of stymying Parliament”. The UK Government appealed this decision to the Supreme Court.

2. R (on the application of Miller) (Appellant) v The Prime Minister (Respondent)

The second case started in the High Court of England and Wales on 5 September. It was initiated by campaigner Gina Miller, who was later joined by six supporters (or “interveners”), including the Welsh and Scottish governments and former Prime Minister Sir John Major. The Court rejected this challenge and ruled in favour of the UK Government. The Court ruled that the question of prorogation was a political (and not a legal) one. Miller and others appealed this decision to the Supreme Court.

The main arguments

The two main issues for the Supreme Court to consider were:

  • firstly, whether the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament was a matter that on which the Court could take a view (i.e. was it justiciable in the courts), and
  • secondly, if the decision was justiciable and the appeal was not academic, whether that advice given by the Prime Minister was lawful.

The UK Government argued that it was not appropriate for the courts to rule on the lawfulness of prorogation. It argued that prorogation was a political matter and that it was ‘forbidden territory’ for the courts.

However, Lord Pannick QC, on behalf of Gina Miller, argued that the five-week prorogation prevented Parliament from scrutinising the UK Government’s work at a time when it was most important that such scrutiny takes place. He argued that the length of the prorogation was influenced by the Prime Minister’s wishes to prevent Parliament from scrutinising and that this was an improper reason for proroguing Parliament. Lord Pannick QC emphasized that as parliamentary supremacy is a principle of our law, the Prime Minister’s decision should be declared unlawful.

The ruling

On the first issue, the Supreme Court held that the lawfulness of the Prime Minister’s advice to the Queen is justiciable. That is that the Courts have jurisdiction to decide upon the existence and limits of a prerogative power. The Court concluded that this case is about the limits of the power to advise the Queen to prorogue Parliament.

On the second issue, the Court held that the decision to advise the Queen to prorogue Parliament was unlawful because it had the effect of “frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.”

President of the Supreme Court, Lady Hale, concluded that the effect (of prorogation) upon the fundamentals of our democracy was ”extreme”, and that there was “no reason – let alone a good reason” to prorogue Parliament for five weeks.

Furthermore, the Court held that the Order in Council (to which the Prime Minister’s unlawful advice led) was also unlawful, “void and of no effect” and should be quashed. All 11 justices were unanimous in their verdict that Parliament has not been prorogued.

Implications for Wales

The Welsh Government submissions in the Miller appeal were made by the Counsel General for Wales. In its submissions, the Welsh Government argued that the Prime Minister’s actions were unlawful, as he had “consciously and purposely” impeded the constitutional principle of Parliamentary Sovereignty. On the particular and distinct consequences for Wales, it was submitted that:

  • The Prime Minister’s actions impeded the ability of the National Assembly to engage in dialogue with the Westminster Parliament, at a critical time;
  • Prorogation would mean that major Brexit Bills would fall as a result of prorogation. The Brexit Bills included topics such as fisheries, trade and agriculture which are of significant importance for Wales. The National Assembly had not legislated in this area, and had consented to Westminster doing so on the understanding that the Westminster Parliament would make appropriate legislative provision on these matters in good time for the UK’s withdrawal;
  • Prorogation severely curtailed proper scrutiny by both the Westminster Parliament and devolved administrations (including the National Assembly) over Ministerial exercise of broad powers to make secondary legislation under the European Union (Withdrawal) Act 2018. Responding to an Emergency Question in plenary, the First Minister advised the Assembly that he “cannot see any way in which Boris Johnson can remain in office following the judgment of the Court today.”

What happens next?

The Prime Minister responded by saying that he will respect the verdict, although he ‘strongly disagrees’ with it. He confirmed that planning for a Queen’s Speech will continue and vowed to “get on and deliver Brexit on 31 October.” He previously signalled to the Court that, if the UK Government was to lose the case, he would not want to reconvene Parliament before 14 October - which is when prorogation was originally due to end.

However, Lord Pannick QC, suggested to the Supreme Court that Parliament should be reconvened, and that the Speaker of the House of Commons and the Speaker of the House of Lords could decide to resume Parliament themselves.

The Supreme Court agreed with Lord Pannick QC that it is for Parliament, and the Speaker and Lord Speaker to decide what to do next. The Speaker issued a statement shortly after the ruling, welcoming the judgment and called for the House of Commons to convene today, Wednesday 25 September.

Article by Sara Moran & Aled Evans, National Assembly for Wales